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TRANSCRIPT
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QRIGINA►lIN THE SUPREME COURT OF OHIO
1®-1255PAUL E. DALRYMPLE
Plaintiff-Appellant
And
SHARON DALRYMPLE
Plaintiff
Vs.
BRETT PURDUM
Defendant-Appellee
On Appeal From The Court Of Appeals
Fourth Appellate District
Ross County
Case No. 09CA3119
Municipal Court Of Chillicothe
Case No. CVE 07 02231
MEMORANDUM IN SUPPORT OF JURISDICTION
Paul E. Dahymple
407 Barnes Lane
Chillicothe, Ohio 45601
Brett Purdam
8911 U.S. Rt. 50
Bainbridge, Ohio 45612
Fi E D^^V E DJUL 19 2010
CLERK OF C®URTSUPREME COURT OF OHIO
JUL 19 2010
CLERK OF COURTSUPRENIE C®URT OF OHIO
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TABLE OF CONTENTS
I believe sections 3.20, 3.23 and 2911.21 (4) (C) of the Ohio Revised Code show where
My rights were violated.
Since the Defendant violated 2911.21 (4) ( C) of the O. R. C. the Defendant probably
violated the Laws that protect Senior Citizens from dishonest contractors.
My lack of education in matters of Law and the Court may not allow me to quote the
Laws but I still have a right to the protection set forth by the Law.
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HISTORY
Default Judgment for Plaintiff November 21, 2007
Vacated January 23, 2008
Municipal Court of Chillicothe, Ohio May 18, 2009
Judgment Entry June 5, 2009
0 District Court of Appeals June 18, 2009
Decision and Judgment Entry June 11, 2010 .
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ARGUMENT
I believe the Magistrates order to vacate the Judgment dated November 21, 2007 was
incorrect.
In the Defendants Answer to Complaint he admits to allegations contained in paragraphs
1,2,3,4,6, and 7 as stated in the Complaint. Paragraph 7 reads : Once the need for the
logging road was terminated the agreement obligated Defendant to restore the real
property of Plaintiffs to the condition it occupied prior to the construction of the
logging road.
In Answer to Complaint paragraph 4 the Defendant claims to have a difficult time
defining the word "restored", but in paragraph 1 of Answer to Complaint the Defendant
admits to understanding Paragraph 7 of the Complaint which explains what "restore"
means. Paragraph 2 reads the Defendant intended to cut timber owned by the PlaintifE
Mr. Purdum never asked me to sign a Contract so he knew he could not cut my timber.
Mr. Purdum knew he would not be cutting my timber before he crossed my land and the
Answer to Complaint Paragraph 7 shows he knew what "restore" meant. I believe that
puts Mr. Purdum in violation of Ohio Revised Code 2911.21 (4) ( C ) Authorization
Secured by Deception.
There was no just cause to vacate the November 21, 2007 Judgment.
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ARGUMENT
MUNICIPAL COURT OF CHILLICOTHE, OHIO May 18,2009 Case No. CVE0702231
I believe it is a sin to swear on the Bible so I don't do it. According to the Ohio Revised
Code 3.20 this is acceptable. Since the testimony and evidence from Myself and Mr.
Purdum completely support my Complaint and the Judge ruled against me, I believe the
Judge failed to be Fair and Impartial as required by Ohio Revised Code 3.23. I believe
The Judge ruled against me because, as a Christian I do not swear on the Bible,
The Appeals Court said the Judge could believe all, part or none of the testimony of any
of the witnesses. Such a rule leaves the door wide open for violations to the rules to be
Fair and Impartial because not even a Judge can see into a persons heart to know who is
honest. The Judge also ignored the evidence that shows a road I did not need or want
where I had a hayfield.
Appeals Court Judge J. Kline thinks Purdum promised to put the land back the way it
was (gratuitous promise). Such is not the case, The only way I would let Purdum cross
My land was if he restored my land when he was finished. Mr. Purdum agreed to my
terms but did not restore my land. That means Mr. Purdum is guilty of criminal trespass,
Ohio Revised Code 2911.21 (4) ( C) Authorization Secured by Deception.
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ARCaU1WNT
If the Court allows this decision to stand it will have far reaching effects in the future.
Any person that destroys another persons land, need only to say they had a deal and
The Court will accept their word for it.
In the interest of Justice I think the Court needs to remember I did not ask for any
compensation to cross my land, I only required that my land be restored. My field
was a hayfield, I now have a road that I have no use for. The road was for Purdums
use only.
Throughout this entire Court process to this point I have been denied Justice.
I am the landowner I set the terms, The logger is a trespasser unless he fulfills my terms,
which he did not, Mr. Purdum even admitted in Court he did not have a deal to cut my
timber as he had said before. Mr. Purdum also admitted that I did not ask for a road on
my property, Mr. Purdum also testified that Mr. Rinehart had said that I was "maybe"
wanting some trees cut, this is proof Mr. Purdum and Mr. Rinehart knew there was no
other deal. The Judge also let the Defense spend time on the issue of my logging my
property the next winter. What I did on my land the next winter was none of their
Business (irrelevant). I signed a contract with another logger to cut my timber, not
with Mr. Purdum. The Judge does not have the authority to decide who can cut my
timber, I own the land, not the Judge.
For my kindness to my neighbor and his logger the Court has said I must pay for the
damage to my land ($8800) plus my lawyer plus Court costs. This is an absolute injustice.
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CERTIFICATE OF SERVICE
Hand delivered to the office of: Edward R Bunstine II
Attorney at Law
32 South Paint St.
Chillicothe, Ohio 45601
(740) 775- 5600
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IN THE CHILLICOTHE MUNI^W^AOCOURT, CHILLICOTHE OHIO
^4^Paul E. Dalrymple, et+^^
Plaintiffs, E NO. 07-CVE-2231
-vs- - * Judge
Brett Purdum, et al. * ENTRY --
Defendants. *
This cause came on for hearing upon application of the
plaintiff for Judgment by Default, defendants, having failed to plead
or appear in the action.
It is ordered, adjudged and decreed that the plaintiff
shall be awarded judgment in this case as follows: judgment against
the defendants for damages of $10,000.00; to pay interest on any
judgment at the statutory rate per annum from March 31, 2007;
reasonable attorney fees, costs and expenses associated with the
prosecution of this action, and for any further relief that the Court
deems appropriate.
Judge
PHILUPS & BUGGAttorneys at Law37 North Paint Street
thiilicothe, Ohio 45601-3116(740) 775-3300
FAX (740) 775-4781
APPROVED:
Clif,fdrd N. Bugg 005Phiy]-lips & BuggAttorneys for Plaihtiff
STATE OF OHIO: SS/COUNTY OF ROSS: -
,-Tina E. Large, Clerk of the Chipicothe MunicipalCourt, within and for said County, hereby certifythat the above and foregoing is truly taken andc ^
Witness my hand an seal of saitl Court thisIS dayof A.D. 20 /lI
Tina E. rg , lerkbY-- r^^Y^E'Pi
Deputy Clerk
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IN THE MIINTCIPALCOURT, CHII.,LICOTHE, OI-IIO
24uf3 !AN 31
Paul E. Dalrymple, et. al.,
in si t:- 0 5
Plaintiff, t{ ,^ra CASE NO: 07 CVE 2231vs.
Brett Purdum, et.al.,Defendant. MAGISTRATE'S DECISION
ON MOTION TO VACATEJUDGMENT
This matter came on for hearing on January 23, 2008, on the Defendant's Motion toVacate the Default Judgment Entry of November 21, 2007. Plaintiff was present and representedby Clifford Bugg, Attorney. Defendant was present and represented by Edward Bunstine,Attorney.
After reviewing the case file and considering sworn testimony from the Defendant andargument from counsel for both parties, it is found that the judgment granted November 21, 2007,should be vacated. There does appear to be a genuine issue of material fact concerning theDefendant's liability for money damages. Defendant did contact his attorney who filed anAnswer. Defendant was under the mistaken belief that there would be a hearing set to determinethe exact amount of damage that Plaintiff claimed was done to his property.
The Defendant's failure to timely answer is found to be based on mistake, inadvertence,and excusable neglect, under Ohio Civil Rule 60(B).
It is further found that Defendant has filed his motion to vacate in a timely manner.For the above reasons, the default judgment should be vacated. The Defendant shall file a timelyAnswer within 14 days from this decision.
Date: I- ^ E - oT
JUDGMENT ENTRY
The above Magistrate's Decision is hereby adopted.The Default Judgment granted on November 21, 2007, is hereby vacated. Defendant is
granted 14 days in which to file his Answer.
Date: ,2^4F,) 6JUDGE
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PROOF OF SERVICE
This Magistrate's Decision and Judgment Entry was served upon afl parties or their
respective Attorneys on 2,-1-CF'-).
DATE: 2 +QL
NOTICE
Objections to the Magistrate's Decision must be filed in writing within 14 days.A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S ADOPTION OFANY FINDING OF FACT OR CONCLUSION OF LAW IN THIS DECISION UNLESS THEPARTY TIMELY AND SPECIFICALLY OBJECTS TO THAT FINDING OR CONCLUSIONAS REQUIRED BY CIVII., RULE 53.
STATE OF OHIO:SS
COUNTY OF ROSS:
I, Tina E. Large, Clerk of the Chillicothe MunicipalCourt, within and for said County, hereby certifythat the above and foregoing is truly taken and.copied from the original 4y„_ • i
now on file in my office.Witness my hand d ai of said Court this1#A day of ^ A.D. 20 /0
bT^ a Lare Clery
Deputy Clerk
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IN THE MUNICIPAL COURT OF CHILLICOTHE, OHIO
Paul E. Dahymple, andSharon Dahymple,
Plaintiffs,
vs.
Brett Purdum,Defendant.
CASE NO. 07 CVE 2231 20Q9 JU; J--
JUDGMENT ENTRY
This matter was tried to the court on May 18, 2009. The plaintiffs, Paul and Sharon
Dalrymple, were present in the courtroom. They were represented by Attorney Clifford Bugg. The
defendant was also present. He was represented by Attorney Edward Bunstine. Paul Dalrymple,
Jeremy Forcum, and Jonathan Evans testified on behalf of the plaintiffs. Plaintiffs' exhibits 1
through 6 were offered and admitted without objection. The plaintiffs rested their case. The
defendant called two witnesses, himself and Bruce Rinehart, and offered exhibits A through Q. The
exhibits were admitted without objection, and the defense rested.
The evidence established that in February or March 2007, Paul Dahymple, Brett Purdum, and
Bruce Rinehart met at Dalrymple's house. They discussed the possibility of using a portion of
Dalrymple's land as a means of access to Rinehart's property. Purdum was cutting timber on
Rinehart's property, and the easiest means of access was across Dalrymple's property. Dalrymple
agreed to let Purdum use his property, but the exact nature of the agreement is in dispute. Dahymple
testified that the agreement allowed Purdum to make a road along the edge of Dalrymple's property
as long as he restored the property to as good condition as he found it. The property was being used
as a hay field, attd the road would skirt the edge of the field. Rinehart and Purdum, on the other
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hand, testified that the agreement allowed them not only to use Dalrymple's property to access
timber on Rinehart's property but also allowed Dahymple to use Rinehart's property to remove
timber from Dalrymple's property. In addition, they said the agreement only required Purdum to
level out the ruts created by the road, not to restore the property to its original condition.
Shortly after the meeting, Dalrymple went to Georgia for a visit. When he retumed, he found
the logging operation underway. He was concerned because Purdum was using more of his property
than he had expected. Dalrymple, however, did not question either Purdum or Rinehart about this
expanded use of his property. When the logging operation ended, defendant did some work to level
out the road, but he did not reseed it or return it to its original condition. Plaintiff was not satisfied
with the way the property was left and contacted defendant in June 2007. According to Dalrymple,
Purdum said he would restore the property on the following Saturday, but he has not done so.
Several months later, Dalrymple hired another logger to remove timber from Dalrymple's
property. That person made use of the same road that Purdum had created. The road has not been
restored since the second logger used it.
Several issues are involved in this case. The first issue is, "what was the agreement between
the parties?" Was it that defendant would restore the property to as good condition as he found it
or was the agreement that Rinehart could use Dalrymple's property and Dalrymple could use
Rinehart's property and the road surface would be leveled out but not restored? Another issue is the
appropriate measure of damages. Is plaintiff entitled to recover the amount of the cost to repair his
property or is he limited by the diminution in fair market value of the property?
The burden of proof is on Dalrymple to prove the facts necessary for his case by a
preponderance of the evidence; that is, evidence that outweighs or overbalances the evidence
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opposed to it. It is evidence that is more probable, more persuasive, or a greater probative value.
He must prove both the nature of the agreement and the amount of damages by a preponderance.
Here, we have competing claims as to the nature of the agreement. The court cannot say
plaintiffs have proved, by a preponderance of the evidence, that the agreement was as Dalrymple
says it was. He says it called for Purdum to restore the property to as good condition as it was before
the work began. Purdum and Rinehart, however, say that the agreement was to use each other's
property for logging purposes. The fact that Dalrymple did log his own property a short time after
Rinehart logged his supports their claim as to the nature of the agreement. It seems likely that
Dalrymple was contemplating logging his own property when the agreement was made. If so, it
would be natural to want to be able to use Rinehart's property in exchange for permitting Rinehart
to use his property. That scenario is at least as likely as plaintiffs' version of the agreement.
Consequently, plaintiffs have not established that defendant is required to restore the land to its
original condition.
The second question to be addressed is "has defendant leveled out the road as required by the
agreement?" Purdum did do some leveling work, but numerous rats remain. What damages have
plaintiffs suffered?
In Ohio, the general rule for damages to real property is set forth in Ohio Jury Instruction
315.35 as follows:
If the damage to the property is temporary and such that the property can be restoredto its original condition, then the owner may recover the reasonable cost of thesenecessary repairs. If, however, these repair costs exceed the difference in the fairmarket value of the property immediately before and after the damage, then thisdifference in value is all that the owner may recover.
The court did not hear evidence as to the change in fair market value of the property which
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is the limit that the plaintiff may recover. Therefore, the court is unable to determine the amount of
damages. For the foregoing reasons, judgment is rendered in favor of the defendant. This oase is
dismissed with costs to plaintiff.
CERTIFICATE OF SERVICE
Copy of the foregoing Judgment Entry mailed to the following by ordinary first class mail
postage prepaid on the Jr ^ day of June, 2009:
Clifford Bugg, Newman & Bugg, Attorneys at Law, 41 N. Paint St., Chillicothe, OH 45601Edward R. Bunstine II, Attorney at Law, 32 S. Paint St., Chillicothe, OH 45601
STATE OF OHIO: SS
COUNTY OF ROSS:
I, Tina E. Large, Clerk of the Chillicotha MunicipaiCourt , within and for said County, hereby certitYthat the above and foregoing is trulytaken andcopied from the original r/M
.finowon iein yWitness my hand d eal of saitl CAoR t2hi^s/^
day of __-!----
' m office
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CoU(: r OF APPEALS
IN THE COURT OF APPEALS OF OHIOFOURTH APPELLATE DISTRICT
ROSS COUNTY 2010 RN I I PM 12: ^ 9
PAUL E. DALRYMPLE, ROyS CLcF?Y OFCC'JR(3LyASTY 0. HINTON
Plaintiff-Appellant, Case No. 09CA3119
and
SHARON DALRYMPLE, . DECISION AND JUDGMENT ENTRY
Plaintiff,
vs.
BRETT PURDUM,
Defendant-Appellee:
APPEARANCES:
APPELLANT PRO SE:1 Paul E. Dalrymple, 407 Barnes Lane,Chillicothe, Ohio 45601
CIVIL APPEAL FROM MUNICIPAL COURTDATE JOURNALIZED:
ABELE, J.
This is an appeal from a Chillicothe Municipal Court
judgment in favor of Brett Purdum, defendant below and appellee
herein, on the action brought by Paul E. Dalrymple, plaintiff
below and appellant herein, and Sharon Dalrymple.
Appellant assigns the following error for review:
"JUDGE'S DECISION WAS BASED ON AN ASSUMPTIONNOT THE EVIDENCE."
lAppellee did not enter an appearance in this appeal.
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ROSS. 09CA3119 2
Appellant and Bruce Rinehart own contiguous properties.
Rinehart hired appellee to do some "logging" on his property and,
in March 2007, the two men approached appellant about access
across his land to reach timber on a portion of Rinehart's
property. Appellant agreed to grant access, but no written
contract memorialized the agreement's terms.
On April 25, 2007, appellant and his wife filed the instant
action and alleged that their agreement required that appellee
restore the right-of-way to its original condition, that appellee
failed to do so and thereby caused $10,000 in damages. Appellee
initially failed to answer and a default judgment was taken
against him. However, after that judgment was subsequently
vacated pursuant to Civ.R. 60(B), the matter came on for a bench
trial.
Initially, we point out that no dispute arose that the
right-of-way agreement was an oral, rather than written,
contract. Appellant testified that his recollection of terms
called for appellee to "fix [his] property," which he defined as
putting it back in the condition it was in before logging began.
Appellee remembered it differently, however, and testified that
all he was obligated to do was smooth over the right-of-way so
"mother nature" could take its course and that part of
appellant's land would return to a state where it could again be
used to grow hay. Further, appellee and Rinehart testified that
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ROSS, 09CA3119 3
this is precisely what appellee did. Rinehart said that appellee
"back-bladed" the property, the end result was that the property
was smooth when they finished. Appellee also introduced various
photographs to substantiate that claim. Appellant, however,
introduced his own photographs that showed deep ruts caused by
logs dragged over the path.
Finally, the evidence further established that after
appellee stopped logging on Rinehart's property, appellant hired
a logger to log his own property. Appellee and Rinehart both
testified that this logging (by someone named "Baxter") caused
the damage to appellant's land.
After weighing the evidence, the trial court concluded that
appellant had not carried his burden of proof. Although the
court did not expressly accept appellee's version of the facts
and the parties' agreement, it noted that "numerous ruts remain"
on the land. Thus, appellee had not "leveled out the road as
required by the agreement[.]" However, when the court considered
damages, it found that insufficient evidence had been adduced to
establish what damages were warranted. Thus, the court entered
judgment in appellee's favor and dismissed the case. This appeal
followed.
Appellant's brief largely rehashes the evidence adduced at
trial and it is somewhat difficult to discern appellant's precise
argument. Indeed, appellant cites no legal authority. However,
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ROSS, 09CA3119 4
we generally afford considerable leeway to pro se litigants. See
e.g. Besser v. Griffey (1993), 88 Ohio App.3d 379, 382, 623
N.E.2d 1326; State ex rel. Karmasu v. Tate (1992), 83 Ohio App.3d
199, 206, 614 N.E.2d 827. Thus, we reformulate appellant's
assignment of error and his argument asserting that the trial
court's judgment is against the manifest weight of the evidence.
Generally, "judgments supported by some competent and
credible evidence should not be reversed on appeal as being
against the manifest weight of the evidence." Shemo v. Mayfield
Hts. (2000), 88 Ohio St.3d 7, 10, 722 N.E.2d 1018; and C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376
N.E.2d 578, at the syllabus. Further, it is well settled that
the trier of fact must resolve questions concerning the weight of
the evidence and witness credibility. The underlying rationale
for deferring to the trier of fact on these issues is that the
trier of fact is best positioned to view witnesses, to observe
demeanor, gestures and voice inflections, and to use those
observations to weigh witness credibility. Myers v. Garson
(1993), 66 Ohio St.3d 610, 615, 614 N.E.2d 742; Seasons Coal Co.
v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.
Thus, a trier of fact (in this case, the trial court) may believe
all, part or none of the testimony of any witness who appears
before it. Rogers v. Hill (1998), 124 Ohio App.3d 468, 470, 706
N.E.2d 438; Stewart v. B.F. Goodrich Co. (1993), 89 Ohio App.3d
i"
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ROSS. 09CA3119 5
35, 42, 623 N.E.2d 591.
Appellee and Rinehart both testified that their agreement
was simply to smooth the path. Other differences appeared in
their testimony, but those discrepancies go to the weight and
credibility of the evidence. Most important, the trial court
concluded that appellant presented insufficient evidence
concerning a proper measure of damages. It is fundamental that
damages must be established with reasonable certainty. Bemmes v.
Pub. Emo. Retirement Bd. (1995), 102 Ohio App.3d 782, 658 N.E.2d
31; Accurate Die Castina Co. v. Cleveland (1981), 2 Ohio App.3d:
386, 442 N.E.2d 459. Although appellant presented an estimate
from a landscape construction firm, the record does not contain
specific evidence of damages that relate solely to grading the
ruts that remain on the property. Courts are not permitted to
simply speculate about an appropriate measure of damages. Here,
the estimate appellant presented contained a single amount for
work to be performed, but included measures beyond the scope of
the parties' agreement.
Accordingly, based upon the foregoing reasons we hereby
overrule appellant's assignment of error and affirm the trial
court's judgment.
JUDGMENT AFFIRMED.
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ROSS, 09CA3119 6
Kline, J., concurring.
I concur in judgment and opinion with the analysis of the
damages issue. That is, I agree that the appellant (hereinafter
"Dalrymple") did not establish damages with reasonable certainty.
However, I write separately because, respectfully, I do not
believe that Dalrymple and the appellee (hereinafter "Purdum")
entered into a contract. Here, Dalrymple promised that Purdum
could use the land. And according to Dalrymple, Purdum promised
to "put [the land] back the way it was." Transcript at 7. In
contrast, Purdum claims that he promised merely to smooth over
the right of way. Regardless, in my view, under either version
of the agreement, there could not have been a contract because of
a lack of consideration. Neither one of Purdum's alleged
promises benefited Dalrymple. As a result, I believe that the
agreement between Dalrymple and Purdum involved a conditional
gratuitous promise. See, generally, Carlisle v. T & R
Excavating, Inc. (1997), 123 Ohio App.3d 277, 283-87 (explaining
conditional gratuitous promises). With this lone exception,
which does not change the result here, I concur in judgment and
opinion.
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ROSS. 09CA3119
JUDGMENT ENTRY
It is ordered the judgment be affirmed and appellee torecover of appellant costs herein taxed.
The Court finds there were reasonable grounds for thisappeal.
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It is ordered that a special mandate issue out of this Courtdirecting the Chillicothe Municipal Court to carry this judgmentinto execution.
A certified copy of this entry shall constitute that mandatepursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment & OpinionKline, J.: Concurs in Judgment & Opinion with Opinion
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NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appealcommences from the date of filing with the clerk.
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